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Lamoine Board of Appeals

Minutes of February 23, 2005 (Approved 9/12/05)

Chairman Chris Tadema-Wielandt called the meeting to order at 6:38 PM

Present were: Appeals Board members Reginald McDevitt, Chris Tadema-Wielandt, John Wuorinen, Hancock “Griff” Fenton, Warren Craft Sr., Administrative Assistant Stu Marckoon, Gary Hunt, Edmond Bearor, Gerald Ford, Anthony & Josette Pettegrow, Brad & Kate Berry, Paul Frederick. The meeting was telecast on Lamoine Government Channel 7.

Chairman Tadema-Wielandt said board members were supplied a copy of the draft findings of fact and notice of decision.

Mr. Wuorinen said in reading through, he found no mention of the agreement to provide noise test measurements after the improvements are made under the Site Plan Review decision. He said that should be contained in # 17 of the conclusions, and he recalled the Pettegrows agreed to provide noise measurements from a qualified expert. Chairman Tadema-Wielandt said he also recalled that. Mr. McDevitt said he thought that was in the agreement. Mr. Fenton said he recalled the discussion and believed the appellees were not against the process. Mr. Wuorinen said it would be appropriate to include that in at least the conclusions and in #17. Chairman Tadema-Wielandt agreed. Mr. Fenton inquired about a time period for the tests to be conducted.

Chairman Tadema-Wielandt looked at the previous minutes and said the directions in the findings and conclusion might be incorrect, and questioned which side the generator was on. Mr. Pettegrow answered the east side. Chairman Tadema-Wielandt asked if the refrigeration unit was on the west side. Mr. Hunt said he thinks the building is oriented in an east-west direction. Mr. Pettegrow said it was more of a northerly direction. Chairman Tadema-Wielandt asked if the direction references should be northeast and southwest. Mr. Bearor suggested referring to the Alvarez side. Chairman Tadema-Wielandt asked if there was only one emergency generator. Mr. Bearor said that was correct. Chairman Tadema-Wielandt continued to review the minutes and read from pages 13 and 14 of the October 21, 2004 minutes. He said the language from the Planning Board said the Pettegrows were to conduct a test, and the purpose of the noise test was to determine if the noise level at the lot lines are within the standards set forth in the ordinance. Mr. Bearor said he recalled the discussion and he said his clients would do that within 3-months of when the permits are final and no more appeals are pending.

Mr. Wuorinen said it would be appropriate to measure at a time that the parking lot is active, and the chillers and generator are running. Mr. Bearor said he agreed and said the testers usually set up for 24-hours. Chairman Tadema-Wielandt asked if there was a time of year that affects noise transmission, and if the transmission is better at this time of year. He asked if the refrigeration units run less in the winter. Mr. Pettegrow said the refrigeration unit on the building doesn't run in the winter, but the trucks run the same amount.

Chairman Tadema-Wielandt asked if there ought to be more than one set of tests. He said it might take some adjusting of whatever equipment is used. Mr. Bearor said he'd prefer not to be saddled with ongoing expenses of noise monitoring. He said if the Board is concerned with a particular time of year, they would conduct the noise testing then. Mr. Frederick said there is the same amount of noise year round, but it seems to be more noticeable in the summer when windows are open.

Chairman Tadema-Wielandt said the buffering plan should alleviate some of the noise and the vegetation will grow over time. He said folks living in Boston often don't notice the noise from the airport as they've grown used to it. Mr. Bearor said he'd prefer a different example. Mr. McDevitt asked what the Board was asking for. Chairman Tadema-Wielandt said he saw no point in an ongoing noise monitoring program. He said if a neighbor believes the noise exceeds the ordinance limits, they would probably call the CEO. He asked Mr. Bearor if his clients know the best way to situate idle equipment for noise buffering. Mr. Bearor said they would situate the refrigeration unit between two idle units and parallel to the abutters.

Mr. Hunt said he thought if tests were done in June and September it would be a good thing. Mr. Wuorinen said that made sense to him and suggested those months. Mr. Bearor asked if that meant tests done between those two months, or two tests, one in June and one in September. Chairman Tadema-Wielandt said two tests. Mr. Bearor asked what the basis was for the two tests. Chairman Tadema-Wielandt said those are busier times as noted on the traffic logs. Mr. Bearor said that was correct in regard to the activity at the lobster pound, but he'd prefer not to have to do two tests. He said if the results of the first test warranted a 2 nd test, then they would be happy to do that. Chairman Tadema-Wielandt said that made sense, and to do a test in June or July and get the results to this board, and if the noise levels are within 1-decibel of the ordinance limits then another test should be done. He said if the tests turn out 15-decibels below the ordinance limit, there would not be much of a point to doing another test.

Mr. Hunt said the tests should be accompanied by vehicle data, including the size and number of trucks. He said it would be helpful to see the test data and know what the traffic was. Chairman Tadema-Wielandt asked if the test could be done on a Wednesday when the emergency generator fires up. He asked about the previous testing company and if they would be appropriate to conduct the tests. Mr. Bearor said they would or anyone else who's a qualified industrial hygienist. He said there is one in Brewer and one in Old Town . Chairman Tadema-Wielandt said they wouldn't have to go to Boston to find one. Mr. Bearor said no. Discussion followed on what sort of qualifications are needed to conduct the noise testing.

Chairman Tadema-Wielandt asked where the sound levels are located in the Site Plan Review Ordinance. Mr. Fenton looked it up and indicated they are in Section 13. Chairman Tadema-Wielandt read the proposed condition. Mr. Wuorinen said the discussion made mention of a 2 nd set of tests if the results of the first turn out to be marginal. Chairman Tadema-Wielandt said he would draft language for that and add it to the conclusion section as well. Discussion followed on the order of wording in the findings of fact and conclusion of law.

Chairman Tadema-Wielandt asked if there were any other problems with the draft findings and conclusion. Mr. Wuorinen said he found only that one thing. Mr. Fenton said they were very well done. Mr. Wuorinen said he was left with the question of the Pettegrows getting a permit to conduct business. He said others have had a chance to think about that. Mr. Fenton said the pertinent point of that discussion might be to recommend to the Planning Board that an ordinance change might be in order. Chairman Tadema-Wielandt said the Appeals Board is done with consideration of this appeal and could raise the issue in the future. Mr. Fenton said there were a number of things pertinent to business, and it would be great to have a workshop in the future. Mr. Wuorinen suggested after the upcoming town meeting votes on ordinances.

Mr. Hunt said he found the ordinance troubling in the Shoreland Zoning Section and read the expansion of use definition. He said the ordinance says a permit is required to expand use, but there is nothing in the application to define the scope of a use. He said the ordinance asks nothing about the operating season or business hours and he asked how a town is supposed to apply an ordinance if it doesn't know what was permitted in the first place. He said it would be helpful in the Limited Commercial Zone if the town knew the parameters of what was there. Chairman Tadema-Wielandt said he agreed that whoever issues the permit needs to be careful to spell out what it's for. Mr. Hunt said there is a need to modify the application form. He spoke about substantial start as being an estimate of total cost. He noted that there was nothing in the 1996 application about that measure. He said it's hard to know if 30% of the originally permitted process was completed or not. He said the Pettegrows were informed by the town they could proceed with the permit the CEO issued to Coughlin. He said the CEO didn't know the stage of the Coughlin project, and no questions were asked about what had been spent and the estimated cost to finish. Mr. Bearor asked if the parties were here to argue the case again. Chairman Tadema-Wielandt said the Board is taking constructive suggestions.

Mr. Bearor said he agreed the application could be improved. Mr. Hunt asked how the town plans to monitor future levels of activity on the property. He said during the hearings it was stated the property has reached its maximum potential and won't accommodate increased activity – that it was maxed out. He said he wondered why a provision in the permit couldn't state that the owners have reached the maximum business potential, and an increase in traffic would need Planning Board approval.

Mr. Bearor said one could make the argument that it's an expansion of use requiring a permit, and the town has the baseline information now. He said they're not anticipating an increase. Chairman Tadema-Wielandt said if there was an application to build a 2 nd tank room, that would be an indication. He said he understood where Mr. Hunt was coming from. Mr. McDevitt said that doesn't apply to what the Appeals Board is here for tonight.

Chairman Tadema-Wielandt said there was a suggestion that the Board might include a condition in the either the Site Plan or Shoreland Permit permit it's going to issue. Mr. Fenton said it could be a blanket thing. Chairman Tadema-Wielandt said he didn't see how it could be quantified it. Mr. Fenton said if they've reached the maximum level, that the Pettegrows would need a new permit. Mr. Hunt said the findings don't say what the current level is. Chairman Tadema-Wielandt said the Board doesn't know – there is very little evidence. He said the Board knows the number of truck trips, but he doesn't know how to quantify an increase in business. He said there is not enough data to establish a baseline other than the level of activity the neighbors witness.

Mr. McDevitt said the suggestion is beyond the scope of what the Board has before it tonight. Chairman Tadema-Wielandt said he wasn't going to take more evidence. He said it might have been good to get that information introduced. He said he'd hate to put something in that would create more room for argument and cited an example. He said the Board is beyond that in this session. Mr. Wuorinen said he agreed. Chairman Tadema-Wielandt said he was sympathetic to the concept. Mr. Wuorinen said the Board has a good document in front of it.

Mr. Hunt urged the Board to include who the appellants were. Chairman Tadema-Wielandt said he would be happy to name the 8 pairs of appellants. Mr. Hunt said there were 7 different properties. He said two couples own one of the properties.

The Board recessed at 7:35 PM in order to make changes to the written findings of fact and conclusion of law. The meeting resumed at 7:52 PM.

Chairman Tadema-Wielandt said corrections and additions were made to the draft notices. Mr. Wuorinen moved to accept the findings of fact and conclusions of law as altered. Mr. Fenton 2 nd . Vote in favor was 4-0. The Board signed the documents. Mr. Marckoon copied the written decisions and gave signed copies to the two attorneys present.

Minutes – Mr. McDevitt moved to approve the minutes of January 11, 2005 and February 1, 2005 as corrected. Mr. Wuorinen 2 nd . Vote in favor was 4-0.

Schmidt – Chairman Tadema-Wielandt said he had not finished the draft of a decision in the Schmidt decision. (Mr. Craft joined the board for this discussion). Mr. Marckoon offered to draft one up in the coming weeks.

Cable TV Coverage – Mr. Craft said he was bothered by the meeting being televised and felt it had become a show business thing. Discussion followed regarding audience participation and the right to know law.

Appeals Board Ordinance – The Board discussed the ordinance that was presented by the Planning Board several months ago. It was noted it is not on the warrant for the upcoming town meeting.

Mr. Craft said he thought the Planning Board wanted to do away with de novo hearings. Chairman Tadema-Wielandt said the ordinance was to make them strictly a Board of Appeals, and not require de novo hearings. He said the ordinances are often silent about that. He noted that Mr. Wuorinen was not crazy about the idea.

Mr. Wuorinen said he wanted to give the appellant a fair chance by throwing the whole matter open on an appeal and let the Board of Appeals expand into areas that were not considered by the Planning Board . Mr. Craft said the Appeals Board's place is to say whether to go de novo or not. He said the Pettegrow case hurt – it took two years. He said de novo might be right to do if the case warrants. Chairman Tadema-Wielandt said the Appeals Board currently cannot decide if a case will be appellate or de novo. Mr. Craft said it just did. Chairman Tadema-Wielandt said the Appeals Board is constrained by language in the Site Plan Review Ordinance and case law. He said the Board could be either a strictly appellate board and hear only what is being appealed or a de novo board and hear the entire case. A short discussion followed.

Chairman Tadema-Wielandt said the court hears only the areas under discussion. A short discussion followed on what would happen if the planning board missed something. Mr. Fenton suggested that something be added to the ordinance for those cases that warrant a de novo hearing.

A short recap of the Pettegrow case followed. Board members said Mr. Marckoon had done a good job.

There being no further business to conduct, Mr. Wuorinen moved to adjourn. Mr. McDevitt 2 nd . Vote in favor was 5-0 at 8:24 PM.

Respectfully submitted,

Stu Marckoon, Secretary for

Lamoine Board of Appeals